Student's Facebook Tirade Against Teacher Is Protected Speech

Share

Student's Facebook Tirade Against Teacher Is Protected Speech

The score is 2-1 in favor of the First Amendment when it comes to three federal rulings this month on the limits of students' online, off-campus speech.

The latest ruling, which supports the student, concerned a former Florida high senior who was reprimanded for "cyberbullying" a teacher on Facebook. Katherine Evans, now 20, was suspended two years ago after creating a Facebook group devoted to her English teacher.

The decision came two weeks after the nation's first two appellate opinions differed on the matter of whether students have a First Amendment right in the online world beyond the schoolyard gates. Those conflicting decisions are the closest within the Supreme Court's reach for review. Dozens of similar cases dot the legal landscape.

The U.S. Supreme Court has never squarely addressed the parameters of off-campus, online student speech. The courts appear to be guided by the high court's 1969 Tinker decision saying student expression may not be suppressed unless school officials reasonably conclude that it will "materially and substantially disrupt the work and discipline of the school."

In that landmark case, the Supreme Court said students had a First Amendment right to wear black armbands to protest the Vietnam War. But that precedent, which addressed on-campus speech, is now being applied to students’ online speech four decades later.

Judge Garber noted in the new Florida case that "controlling precedent may be unclear," but Evans had every right to criticize her teacher, even if she opened herself up to a defamation suit.

One of the cases favoring student speech concerned a senior honors student. In 2005, the Pennsylvania high school student was suspended 10 days after he created a mock MySpace profile of his principal.

The profile said the principal took drugs and kept beer at his desk. The appeals court and a federal judge overturned the suspension, ruling the fake profile was not created at school and did not create a "substantial disruption" "(.pdf) at school.

The other case, also decided by the 3rd U.S. Circuit Court of Appeals the same day, went against a 14-year-old Pennsylvania junior high student. She also mocked her principal with a fake MySpace profile. The 2007 profile insinuated the principal was a sex addict and pedophile.

On appeal, the the 3rd Circuit noted that teachers complained that, among other things, the profile disrupted the classroom because students were talking about the profile rather than paying attention to class. “We decline to say that simply because the disruption to the learning environment originates from a computer located off campus, the school should be left powerless to discipline the student,” (.pdf) the three-judge circuit panel wrote.